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Landmark decision: Can the SEN & Disability Tribunal order an independent school to admit or reinstate a pupil?

5 September 2019

In a landmark decision, the Upper Tribunal has held that independent schools can be ordered to reinstate an excluded pupil and risk of being in contempt of court if they fail to do so.

The key issues to be determined

One of the key issues under consideration was whether the First-Tier Tribunal had the power to order reinstatement.

Whilst the First Tier Tribunal has the power under the Equality Act 2010 to make such ‘order as it thinks fit’, this is restricted in that it cannot award compensation and its power must be exercised reasonably.

Given the relationship between parents and private fee-paying schools is contractual, and such schools are not under a statutory duty to admit (unlike state funded schools), it was for the Upper Tribunal to determine whether the First-Tier Tribunal was able to order reinstatement and indeed, whether there is any route to enforce such an order. Was it Parliament’s intention that the Tribunal’s power included ordering what amounts to specific performance in a private contract?

The Judge held that:

Whilst there has been a longstanding reluctance on the part of the courts to order specific performance of a contract involving personal service, this did not constitute an absolute bar on the remedy. Indeed, where the relationship of trust and confidence had not broken down as between the school and the parents, this favoured reinstatement.

If the Tribunal did not have the power to order reinstatement, it would render the Tribunal effectively toothless: it could not have therefore been Parliament’s intention that the First-Tier Tribunal could not make an order. Indeed, the Act specifically refers to the making of “such order” as it considers reasonable in all the circumstances.

Where a school chose to ignore such an order, parents could either rely on the inherent jurisdiction of the High Court to enforce the order of the First-Tier Tribunal (who could attach a penal notice), or apply for injunctive relief from the Equality and Human Rights Commission in light of the unlawful act of discrimination.

An order for an apology: does it have “true value”?

In this case the Judge also considered whether an apology had “true value”. He noted that where it may provide solace for the emotional or psychological harm caused by unlawful conduct and/or where it would not create “resentment on one side and an illusion on the other or do nothing for future relations and make them even worse”, it would be appropriate to order one.

It would therefore seem that where there are good relations between the school and parents prior to the discriminatory act (such as exclusion), and there is nothing to suggest that the relationship between the school and the parents had broken down an order for an apology would be appropriate.

Learning Lessons

The decision of the Upper Tribunal has potentially significant implications for independent schools in all contexts in which they are taking actions in relation to, or which may affect, pupils with a disability (including prospective pupils). However, the impact will be most relevant where schools are taking disciplinary decisions – particularly decisions to exclude – pupils who have a disability for the purposes of the Equality Act 2010.

Where a child is excluded, it now comes with the increased risk, not only of an Equality Act claim being brought, but that the Tribunal may order the school to admit/re-admit the pupil following a finding of unlawful discrimination. Furthermore, any failure to comply with such an order risks being found in contempt of court. This case could feasibly extend to other areas of a school’s operations, for example, admissions. For instance, if a refusal to offer a place to a child with a disability was found to be discriminatory, this could result in an order to admit.

So what can schools helpfully take away from this decision?

Before making any decision to exclude or not offer a place, consider the school’s reasonable adjustments duty. Schools are under a legal obligation to make reasonable adjustments for pupils with a disability to avoid them being placed at a substantial disadvantage. This includes considering what adjustments can be made to avoid exclusion or indeed, not offering a place (where a child otherwise meets the school’s published admissions criteria).

The case demonstrated that the reasonable adjustments duty ‘bar’ is set high, so schools will be expected to go to some considerable lengths to demonstrate compliance. In this case, the school had gone a long way in making adjustments for the child before taking the decision to exclude, and despite this, the Tribunal felt that further steps could have been taken. Schools will need to consider the facts of the individual pupil’s case, and any particular recommendations which have been made, with an audit trail showing their reasonable adjustment considerations. The EHRC Reasonable Adjustment for Disabled Pupils guidance may be helpful for schools when considering potential adjustments.

Ensure effective and clear communication with parents before taking any decision to exclude, such that the decision does not come as a surprise.

Ensure implementation of school policies (such as admissions, behaviour and exclusions policies) is fair, lawful and consistent. Consider whether any adjustments should be made to the application of that policy in relation to the pupil (for instance, if the behaviour arises as a result of the disability).

Where a child with an EHCP is at risk of exclusion, instigate an emergency review of their EHCP before any decision is made. Such a review should consider the support currently in place and what additional provision may be required.

Where appropriate, seek multi-agency support, such as from the local authority or CAMHS. Document their input, recommendations and guidance and the steps taken by the school in light of these and implement those adjustments which are reasonable for the school to make.

Where a child is at risk of exclusion, consider other sanctions and whether this may be a more appropriate response. Record and document this, together with reasons why the sanction applied was considered reasonable, fair and justified.